A New Debate Over CIA Doctors and Torture

The recent allegation that CIA doctors “conducted human research and experimentation on prisoners in U.S. custody” adds a new wrinkle to longstanding questions about the role of health professionals during interrogations of terror suspects following 9/11. Physicians for Human Rights (PHR), which issued its report earlier this month, is the first to give evidence of alleged “illegal experimentation” by CIA medical personnel. “This current report provides evidence that in addition to medical complicity in torture, health professionals participated in research and experimentation on detainees in U.S. custody,” the report says.

After releasing its findings, PHR, along with other activist groups, called for a federal investigation by the Office for Human Research Protections (OHRP)—part of the Health and Human Services department—into the CIA’s Office of Medical Services. PHR says that the Office of Medical Services personnel—through “unethical” human-subject research and experimentation, and complicity in torture—have violated Article III of the Geneva Conventions, the U.N. Convention Against Torture, the Nuremberg Code, and the U.S. War Crimes act. Violating the War Crimes Act is a criminal offense punishable by a fine, imprisonment, or death (if a prisoner dies as a result of abuse). PHR also alleges that 2006 amendments to the War Crimes Act “weaken the prohibition” of human experimentation; the organization is calling for the original wording to be restored.

The CIA denies PHR’s allegations. “The report’s just wrong,” says CIA spokesman George Little. “The CIA did not, as part of its past detention program, conduct human-subject research on any detainee or group of detainees.” Little adds that the “detention effort” has “been the subject of multiple, comprehensive reviews within our government, including by the Department of Justice.” In 2009 U.S. Attorney General Eric Holder appointed prosecutor John Durham, an assistant attorney general in Connecticut, to review interrogation practices of certain CIA officers. Durham, who has since 2008 also been investigating the CIA’s destruction of videotapes of interrogations, is reportedly nearly complete with his probe into whether some CIA officers and contractors went beyond interrogation guidelines outlined in memos by the Justice Department’s Office of Legal Counsel (OLC) under the Bush administration. The Office of Professional Responsibility, an ethics office within the Department of Justice, has since rejected many of the legal opinions in the OLC memos that sanctioned the interrogation practices. Prior to Durham’s review, The Wall Street Journal reported in April 2009 that Attorney General Holder and President Obama said that CIA officers who followed the OLC memo’s guidelines for interrogations will be immune from government prosecution.

But the author of the PHR report isn’t convinced those officers should be granted immunity because, he says, the memos themselves warrant further investigation. Nathaniel Raymond, lead author of the report and director of the PHR’s Campaign Against Torture/Campaign for Accountability says the paper “raises the question of whether or not the OLC relied on a war crime to avoid committing another crime”—in other words, did the authors of the OLC memos use “unethical” human experimentation as a way of both justifying torture and allowing CIA officers and contractors to skirt legal liability? “If the administration turns a blind eye to ethics violations on both sides [of the medical and legal profession], they are saying what makes a doctor a doctor can be dispensed with when politically convenient [and] what makes a lawyer a lawyer can be dispensed when politically convenient,” Raymond says.

PHR’s report suggests that medical personnel working for the CIA monitored interrogations of prisoners in U.S. custody, “collected and analyzed the results of those interrogations, and sought to derive generalizable inferences to be applied to subsequent interrogations ... Such acts may be seen as the conduct of research and experimentation by health professionals on prisoners, which could violate accepted standards of medical ethics, as well as domestic and international law ... These practices could, in some cases, constitute war crimes and crimes against humanity.” Raymond says one of the report’s aims is to remove the “asterisk” added by the OLC memos that professional codes can be discarded whenever they are seen as conflicting with the goals of a state organization.

Medicolegal analyst George Annas isn’t so sure that PHR’s appeal to the OHRP is the way to go. Annas, a professor of health law, bioethics, and human rights at Boston University, says that the OHRP is unlikely to conduct an investigation. “There was a time when OHRP shut down research institutions [for improperly conducting human research],” Annas says, but the most OHRP does today is reprimand institutions for violations. And Annas believes that what PHR asserts CIA personnel may be guilty of is unlikely to be considered research because it does not follow the National Institutes of Health definition of research—including having a hypothesis and at least a historical control group. Most importantly, Annas says, “it misses the point to call it research. It’s torture and there’s no reason to dignify it as research.” The PHR report says that though the declassified files do not show that the experimentation had all elements of a “legitimate scientific investigation,” they do “give evidence of human experimentation.”

Dr. Allen Keller, director of the Bellevue/NYU Program for Survivors of Torture and a coauthor of PHR’s report, says that PHR’s latest complaint is only one part of a multifaceted approach to increase accountability. In order for Office of Medical Services health professionals to be penalized, their names would have to be released and state boards of medicine would have to become involved. State regulatory boards of medicine could revoke doctors’ licenses if they are found to have acted unethically. But that’s an improbable route for punishment because state boards are unlikely to delve into a federal or military issue, Annas says. And even if medical licensing boards did attempt to rebuke doctors for alleged unlawful behavior, the Department of Justice is the only U.S. agency that can prosecute civilians for war crimes, he says. The U.S. is not a signatory to the International Criminal Court, but could still be subject to the court’s jurisdiction, which includes genocide, war crimes, crimes against humanity, and crimes of aggression. And Raymond says that though it’s not known what barriers an international investigation would face, international intervention is a “real threat” to CIA personnel alleged to be involved in the issues of torture and human experimentation and research. “It would be the death of American credibility on human rights if we [the U.S.] continue our current posture,” Raymond said. “I can’t think of a worse tragedy ... because it’s not who we are.”

Nonetheless, PHR’s Washington director John Bradshaw hopes that OHRP will determine whether the health professionals in question did commit a crime and should be referred to state licensing boards and the Department of Justice. If the Office of Medical Services personnel did indeed commit a crime, “their status as CIA employees should not shield them from prosecution,” Bradshaw explains. Meanwhile, New York, Massachusetts, California, and at least three other states are considering bills specifically addressing the participation of medical personnel in torture.

Of course, torture is already illegal and medical professionals are already committed to codes of ethics and policies like the common rule, which refers to federal regulations that the Department of Health and Human Services says applies to all research involving human subjects that is either supported by or subject to federal regulation. The common rule also applies to federal civilian and military employees, but according to Annas, violating the common rule is not a crime. In the end, accountability will likely have to come from whistle-blowers within the CIA, Annas says.

Phil LaVelle, a spokesman for Senate Select Committee on Intelligence chairwoman Dianne Feinstein, says the committee doesn’t plan to hold a hearing solely on the PHR report. But its findings will be addressed under the “umbrella” of a long-term study that the committee began in March of 2009 regarding the CIA’s practices on detention and interrogation. That investigation, LaVelle says, is ongoing.